Friday, December 13, 2013

Jepsen Skirts Statutory Obligations

The office of Attorney General in Connecticut evolved from the King’s Lawyer in the pre-Revolutionary period. It was the English attorney general who, after a hearing with Connecticut Governor John Winthrop, approved a bill for incorporation of the Connecticut Charter.

In Connecticut’s colonial period, the office of state’s attorney represented both the administrative and criminal interests of the crown. The office of Attorney General was established in 1898 to represent the civil interests of the state, the criminal interest to be retained by the chief state’s attorney. The office of Attorney General today retains its initial purpose in colonial law. The Attorney General’s office is statutorily obligated to represent the legal interests of the governor of the state and his administrators. While the nature of the chief executive in Connecticut has changed from king to governor, needs remain constant. Both king and governor operate politically within set legal constructs, and both need an office to advise the chief executive and to represent its interests and those of its agents in civil legal proceedings.

The principal duties and responsibilities of the state’s Attorney General are set forth in Conn. General Statute Section 3-125, which authorizes the Attorney General to “represent the interests of the people of the State of Connecticut in all civil legal matters involving the state to protect the public interest, and to serve as legal counsel to all state agencies.”

People in Connecticut may be forgiven for assuming that the principal duty of the office is to serve as a sort of consumer protection agency on steroids, the chief focus of two assertive and politically minded former Attorneys General, Joe Lieberman and Dick Blumenthal, both of whom used their time in office as springboards to the U.S. Senate. The first duty of the Attorney General, however, is to serve as lawyer representing the interests of the governor and state agencies.

When an Attorney General represents at any hearing a governor who has been sued by a non-governmental agency, he is fulfilling the statutory obligations of his office. When the Attorney General sues or threatens to sue an herb dealer on a complaint from a citizen that the vendor may have violated a questionable term in a contract, he is operating on the outer edge of his statutory authority. When such suits become the primary focus of the office of Attorney General – as was the case under former Attorney General Dick Blumenthal – the legislature should yank on the statutory reins that limit the authority of the Attorney General’s office.

Present Attorney General George Jepsen’s refusal to press a case involving former Governor John Rowland beyond an appellate court decision to the U.S. Supreme Courtborders on a dereliction of duty. The most recent appellate court decision, which reversed an earlier decision in favor of Mr. Rowland and against a powerful, politically connected union, the State Employees Bargaining Agent Coalition (SEBAC), should be contested at the highest level, especially since the Attorney General’s office has spent considerable time and expense defending the ex-governor in a suit that claims Rowland abused his gubernatorial power by singling out state union workers for lay-offs.

The interests of the state do not disappear because the plaintiff at trial is a former governor who had been convicted of depriving the state of honest services, a charge to which Mr. Rowland pleaded guilty and for which he was sentence to a year in prison and four months of house arrest.

Both Mr. Malloy and Mr. Jepsen are union friendly government officials. Mr. Malloy has marched on the picket line with striking unions. His first budget – negotiated by the governor and SEBAC after Republican leaders in the General Assembly had been ejected from the negotiating table – was praised by union-friendly state Senator Edith Prague as too good to be true; she said at the time that union leaders would be crazy to reject a deal arranged by Mr. Malloy and SEBAC bargaining officials. Mr. Jepsen’s first job after graduating from college was as staff counsel for the carpenter’s union of Western Connecticut, UBC Local 210.For nearly ten years before entering the General Assembly, Jepsen negotiated contracts for wages and benefits, represented injured workers, ensured job safety, and advocated for different bidding practices. Mr. Jepsen served in the General Assembly for 16 years, the last 6 as Senate Majority Leader.

Rather than press the reversal of the appellate court to the U.S. Supreme Court, Mr. Jepsen has decided to negotiate the case with SEBAC, which represents a significant step backward in the train of litigation. It is possible that Mr. Jepsen has traded in his statutory obligation to represent the state’s legal interests for a nostalgic turn at union negotiations? Given Mr. Jepsen's past close ties with unions, the trade is certainly understandable. And given his past close ties to the state Democratic Party and a union friendly governor, the Attorney General’s decision to forego further litigation in favor of a further bout of union negotiation is unsurprising, though some may think it highly political -- in the bad sense.